HL Deb 31 July 1940 vol 117 cc57-72

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly:

[The EARL OF ONSLOW in the Chair.]

Clause 1:

Power to provide for trial of offences by special courts in certain areas.

(2) After paragraph (a) of subsection (2) of Section one of the principal Act there shall be inserted the following paragraph— (aa) make provision for the apprehension and punishment of offenders and for their trial by such Courts, not being Courts Martial, and in accordance with such procedure as may be provided for by the Regulations, and for the proceedings of such Courts being subject to such review as may be so provided for; and in the said paragraph (a) the words "for the apprehension trial and punishment of persons offending against the Regulations and", are hereby repealed.

4.59 p.m.

THE LORD CHANCELLOR (VISCOUNT SIMON) moved, in subsection (2), to add to paragraph (aa): so, however, that provision shall be made for such proceedings being reviewed by not less than three persons who hold or have held high judicial office, in all cases in which sentence of death is passed, and in such other circumstances as may be provided by the Regulations.

The noble and learned Viscount said: This Amendment is on the Paper, and those of your Lordships who are following the matter will no doubt have seen its terms. In the Bill there is already a provision on page 2, line 15, that the Defence Regulations made in connection with the subject-matter shall be authorised to include provision for the apprehension and punishment of offenders and for their trial by such Courts, not being Courts Martial, and in accordance with such procedure as may be provided for by the Regulations, and for the proceedings of such Courts being subject to such review as may be so provided for. The effect of that is that the Bill as it stands authorises the making of Regulations for the creation of a reviewing authority, but it does not on the face of the Bill say that there shall be such a reviewing authority. The matter was felt by the Government to be of such importance that we thought that it would be right to place upon the face of the Bill a provision that there shall be a reviewing authority; and consequently I am moving to add, at line 22, at the end of the words which I have just read, the following words: so, however, that provision shall be made for such proceedings being reviewed by not less than three persons who hold or have held high judicial office, in all cases in which sentence of death is passed, and in such other circumstances as may be provided by the Regulations.

I have not forgotten the suggestion made yesterday by my noble and learned friend Lord Atkin, and approved, I think, by others of your Lordships, that it may well be desirable that this review should extend as a matter of course not only to the case where the convicted person is sentenced to death but also to cases where the sentence is a serious and lengthy sentence of penal servitude. I am communicating with the Home Secretary on the subject, and I have no doubt that we shall be able to cast the Regulation in a way which is in accordance with what I believe to be the wishes of your Lordships' House. I am moving this because I regard this matter as of fundamental importance. It is quite impossible, for reasons which I explained yesterday, that all the Regulations connected with this matter should themselves come one by one before Parliament to be approved; but I think that the statement which I made yesterday, and which was as clear and full as I could make it, has informed your Lordships thoroughly of what the scheme is. It is hardly necessary to say that such a statement is made with great deliberation on behalf of the Government as a whole, and if, indeed, there was any departure from it, I know very well that Parliament and your Lordships in this House would at once want to know the reason why. I beg to move.

Amendment moved— Page 2, line 22, at end insert the said new words.—(The Lord Chancellor.)

LORD ADDISON

On behalf of my noble friend, who is not here to-day, I should like to thank the noble and learned Viscount for this Amendment, which meets the very important point which has been raised, that this reviewing machinery should be mandatory. There are two questions, however, which I should like to put. The cases to which it will apply are, as we have been told, those where persons are sentenced to death and such other cases "as may be provided by the Regulations," meaning in particular, I take it, long or severe sentences. It would be a comfort to some of us if the noble and learned Viscount could give us some indication of the character of the other cases which would be subject to review. If I remember aright, it was suggested—I cannot at the moment recall where—that the other cases for review should be those where the President of the Court which tried them recommended that there were circumstances of fact or law which should be taken into account and subjected to review; in other words, it was left entirely to the President of the special Court which is set up. I should like to ask, therefore, whether the Lord Chancellor can give us any further particulars of the character of the extension which is proposed.

Secondly, can he tell us how or in what form the Regulations will be made avail- able for us to see? I quite understand that a Bill of this kind must be made applicable by Regulations, and of course those Regulations cannot be dealt with piecemeal; but it is desirable, I think, although it is not provided for in the Bill, that the House should have an opportunity of seeing these Regulations. Can we be told at what time it is likely that the Regulations will be laid before the House? In that case, I hope that we can if necessary raise any points for discussion concerning the Regulations as a whole, although I quite understand that they cannot be amended in detail. I should like some information as to how these Regulations are to be made available for your Lordships to see. I am quite sure that all the undertakings which the noble and learned Lord Chancellor gave will be met.

LORD MOTTISTONE

As I first made this suggestion in the debate yesterday, I desire to add my word of thanks to those expressed by Lord Addison for the concession made, that this power of review shall apply to terms of penal servitude as well as to the death penalty. There was another point made by Lord Atkin yesterday, but, as I am going to suggest a new clause in a moment, I will say no more now, but merely thank the Lord Chancellor for having met us in this way.

THE LORD CHANCELLOR

I have been asked two questions. The first is as to the intended scope of the review of convictions and sentences. I think that your Lordships will generally approve the view that it should not be an automatic review of everything, because there will be cases which really do not call for review, cases where the man pleads guilty, cases where the position is so plain that there can be no sort of doubt. But sentence, of course, is quite another matter. The scheme is—and this is involved in what I am now moving—that in every case where sentence of death is imposed there shall be a review as a matter of course. I take note of the suggestion, and shall endeavour in arrangement with the Home Secretary to carry it out, that there should also be included an automatic review of cases in which the sentence, although not a sentence of death, is, as Lord Atkin said, a sentence which is almost as bad as that of death —namely, a sentence of a prolonged term of penal servitude.

In addition to that, there may well be cases which, although they do not involve such heavy punishment, nevertheless do for one reason or another raise particular difficulties. There may be a difficulty on the facts, or there may possibly be a difficulty of a legal kind. I do not think that anyone can be better qualified to pick out those cases than the experienced High Court Judge who is trying them. It is, I think, not beyond the experience of Judges that sometimes a Judge says, "I shall be very glad if this case goes to the Court of Appeal" meaning that he feels that he would like to have the case reviewed. I believe that that sort of system, which I hope that I have now sufficiently explained, will really provide very adequately indeed for the review which we intend. It would be a grave error, I think, to make the review automatic in every case, for it would slow down proceedings and take away some of the value of the original jurisdiction when that jurisdiction is rightly applied, and when everybody recognises that it is rightly applied. That, I think, answers the first question.

I do not want there to be any misunderstanding between myself and the noble Lord about his second question. It is not practicable that these draft Regulations should be placed before both Houses of Parliament in order that they might then be discussed Regulation by Regulation, with, no doubt, many ingenious minds finding suggestions for putting this, that or the other slightly differently. Parliament passed the original Act, the Emergency Powers Act, precisely because these things could not be done by legislation in the ordinary way. What I will gladly do is to secure that as soon as the Regulations are ready and complete—naturally there are a few matters still to be adjusted—but as soon as those have been made under the Order in Council they shell be available on the Table of the House so that everyone may examine them, and of course, if necessary, put a question about them. There is a power to move in the two Houses to revoke the Order in Council, but it will really not be practicable—and I wish to say so quite plainly—to make arrangements for the Regulations to be reviewed one by one before the Act comes into force.

I give two reasons. The first is the practical reason that when we are at war, and when we may want this very machinery next week, it would indeed be a most dilatory proceeding to attempt to get the two Houses to agree to every single line of these Regulations, especially when a change in any one of them would mean that the whole thing would have to begin again and a new Order in Council to be got. The second reason is that it is quite inconsistent with the scheme of the Bill. The Bill is a Bill for dealing with "the extent of the powers which may be exercised by His Majesty under the Emergency Powers (Defence) Act, 1939" The powers of His Majesty under that Act are powers to make Regulations, and therefore we should merely be making the whole of this legislation quite futile if it were to be said that now that it is all done it is not to be a matter of exercising powers under the Emergency Powers Act, but the matter is to come again before the House. I must be quite firm about this, for I have not the slightest doubt that it is the practical view. I answer it now because the noble Lord put the question to me. Perhaps it may be regarded as more especially arising on an Amendment of the noble Lord, Lord Mottistone, of which he has given me notice, but I feel no doubt that the good sense and judgment of the Committee will see that what I have said is reasonable, and it was for that very reason that yesterday, perhaps at some great length, I trespassed on the attention of the House to make as full and as clear a statement as I could of exactly what the scheme in the Regulations would be.

On Question, Amendment agreed to.

THE LORD CHAIRMAN

I have had a manuscript Amendment handed in by the noble Lord, Lord Mottistone. It is in Clause 1, page 2, line 25, at the end to add: Regulations under this Act shall not become operative in law until they have been expressly approved by Motion in both Houses of Parliament

5.13 p.m.

LORD MOTTISTONE moved, after subsection (2), to insert: Regulations under this Act shall not become operative in law until they have been expressly approved by Motion in both Houses of Parliament

The noble Lord said: I had intended to move an Amendment of this kind, and in the interval I have received a letter from a man whose legal knowledge is regarded with the greatest respect by every member of this House, Lord Fairfield, who begged me to do so. The actual words of the Amendment are those which he suggested, with a small amendment of my own. I regard the matter as of the utmost importance. It is a legal question, on which I should be glad to have the Lord Chancellor's opinion, but I have reason to believe that Lord Fairfield himself, as well as the high legal authorities I have consulted, agree that the Amendment in this form would mean that the Government could still act on the Regulations in the emergency this Bill contemplates, but when they come before Parliament instead of the procedure proposed in the principal Act—namely, that If either House of Parliament, within the next twenty-eight days on which that House has sat after such an Order in Council as aforesaid is laid before it, resolves that the Order be annulled, the Order shall thereupon cease to have effect except as respects things previously done or omitted to be done, without prejudice, however, to the making of a new Order"— instead of that procedure passing sub silentio, people who care very deeply that the liberties of the subject should be infringed as little as possible, and that Parliament should have the right of review so far as it possibly can, are of opinion that I should move this Amendment.

We do not know what the Regulations are to be. It is a very big thing to ask either House of Parliament to approve of Regulations involving everything—life and death—without knowing what we are approving. I think the least we can say is that if it is accepted that the Government must have the power to propound Regulations under which they can act forthwith, when the time comes for those Regulations to be approved it shall be done by a Motion moved by a Minister of the Crown in both Houses, so that the country may fully understand what has been proposed and what has been acted upon. I beg of those who wish to preserve the substance of our rights, as I know all your Lordships do, as far as they can, to support this Amendment, for unless I am mistaken it would not interfere in the least with the Government's powers to act to-morrow if this Bill becomes law, as it presumably will do in a few hours.

VISCOUNT MAUGHAM

Will the noble Lord tell us on what authority he states that? I cannot think it is the authority of Lord Fairfield. But he is quite wrong. If his Amendment is carried the whole thing stops, and the result is that Martial Law will have to prevail.

LORD MOTTISTONE

I note that Lord Maugham is not in agreement with my noble friend Lord Fairfield or with myself.

VISCOUNT MAUGHAM

Does the noble Lord say that Lord Fairfield suggested that if this Amendment was passed the Government would have power to make Regulations and to act upon them? because, with all respect, that seems to me preposterous.

LORD MOTTISTONE

I thought I was making this speech and not the ex-Lord Chancellor, and I have no doubt we shall listen with the utmost respect to the noble and learned Viscount when it comes to his turn. He asked me a question at some length, and twice over. I say the intention of the noble Lord, Lord Fairfield, who unfortunately is ill, is undoubtedly that the Government shall have the power of swift action. I am going to make the necessary Amendments if Lord Maugham be right, but that is the intention, and that is what I ask this House to agree to. Nor do I propose to recede from it for one instant. If it be true that the actual words here mean that the power of the Government to act is withheld from them, I should at once move amending words to make my intention quite clear. But I know this House, which always wishes to act fairly in all respects, will wish to bring the simple matter to an issue: Shall the Regulations come before Parliament in the form laid down by the principal Act, which means that they lie on the Table for twenty-eight days and then become law, or shall the Government be compelled, as I suggest they should be, to make a substantive Motion in order to explain what they have done and why they have done it? I sent to the Lord Chancellor a full copy of all the documents concerned, as I always do, and when he speaks, if he says that the Amendment would have a contrary effect to that which Lord Fairfield wishes, I will move an appropriate Amendment and we can decide the matter.

Amendment moved— Page 2, line 25, at end insert ("Regulations under this Act shall not become operative in law until they have been expressly approved by Motion in both Houses of Parliament").—(Lord Mottistone.)

THE LORD CHANCELLOR

My noble and gallant friend was good enough to send me a copy of the letter to which he referred, and I have it before me. I am therefore in a position to assure your Lordships that so distinguished a lawyer as Lord Fairfield never for a moment suggested in his letter that the Amendment, which itself does follow his letter, could possibly have the effect that everything would operate forthwith, although, by the very language of the Amendment, nothing is to operate until the Regulations have been approved of by both Houses of Parliament. That of course is too plain for possible argument. I must say for my part—and I say it with great respect—that I rather regretted when my noble friend cited authorities rather vaguely which we are to understand give particular importance to his precise propositions. I thought I caught him saying he had consulted other legal authorities on this point. We must make the best use we can of such legal authorities as are here now available to advise the House. I shall do my best, and I see my noble friend Lord Atkin and my noble friend Lord Maugham are here. There is really not the slightest doubt about the matter, and I cannot understand anyone except perhaps a layman—who thinks the law is very complicated, whereas it only requires the application of clear sight to reasonably clear language—supposing that this Amendment would not wreck the Bill.

It is of the essence of the Bill, it is the meaning of the Bill, that we should declare what is the extent of these powers of Regulation. If my noble friend will look for a moment, he will see the Bill is called "An Act to remove doubts as to the extent of the powers which may be exercised by His Majesty under the Emergency Powers (Defence) Act" That is what the Bill is about. What are the powers which may be exercised by His Majesty under the Emergency Powers Act? That is what it is. There are, and have been since the beginning of the war, a great number of Defence Regulations made on a large variety of subjects, some of them very important indeed, and carried through by this procedure because it has been generally recognised—and the noble Lord would be among those who recognise it—that under the conditions of war, and the possibility of an emergency arising instantly, it is not possible to adopt a more dilatory procedure.

If the noble Lord really thought he could make this suggestion without producing delay, then of course he is excused. I cannot imagine that, if he of all men thought that what he was proposing might involve a delay of weeks or months, he would be the person to propose it. It was for that reason that I yesterday stated to the House in some detail what these proposals were. It was for that reason, I apprehend, that Lord Atkin, in his speech yesterday, said that there having been so full a statement of the scheme to be embodied in the Regulations, he, looking at it with the strictness of a lawyer, considered that we were well justified in proceeding in the way proposed. I have to tell your Lordships quite frankly that the introduction of such an Amendment as this into the Bill would not only make the whole form of the Bill quite absurd, but it would produce such delay and inconvenience is the Government could not take responsibility for.

LORD STRABOLGI

How much delay would be introduced?

THE LORD CHANCELLOR

It would mean that in both Houses of Parliament there would have to be a debate on Regulations which cover, I should say at a guess, five or six pages of close print. The Regulations number more than twenty. There is not one where any ingenious and devoted mind might not suggest a possible change, either of phrase or substance. My noble friend said he did all this because of his devotion to the protection of the citizen and the rights of civil liberty. I hope he will do me the justice of recognising that I, too, have not shown myself unwilling to champion these causes. It would probably mean there would either be a difference of opinion between the two Houses, or you would have a change made in the Regulations which would result in its being necessary to do the whole thing over again. I am not by any means confident that the enemy would be prepared to wait for that, or that the noble Lord would be prepared to guarantee we could get through this rather mature process without that risk following.

There is a provision in the law by which this matter can be revised, and that is the right method. The method is—and it applies to all Defence Regulations—that if either House of Parliament, within the next twenty-eight days on which the House has sat after an Order in Council has been laid—because these things are authorised by Order in Council—resolves that the Order be annulled, the Order shall thereupon cease to have effect. My noble, gallant, and learned friend was quite wrong when he said just now that the proposal in the Act was that the Resolution of either House of Parliament within twenty-eight days would have the result that the Defence Regulations would not begin until that period had passed. That is quite wrong. They begin the very moment the Order in Council is made.

LORD MOTTISTONE

I did not say that.

THE LORD CHANCELLOR

Then I misunderstood the noble Lord. At any rate, it is not so, and the reason is that urgency is the essence of the matter. I therefore address my appeal to my noble friend, and ask him to reflect that this matter has been considered by people who are as zealous for the protection of the subject as he can be. I showed yesterday how anxious I was to explain the whole scheme fully to the House, and that it had already, on that basis, been considered by the House of Commons subject to our returning the Bill, as I am glad we are going to do, with the most important Amendment which your Lordships agreed to put in just now. I hope in these circumstances we shall realise that when we are at a critical stage of the war we cannot adopt methods which would be very proper in times of peace, and that precautions have been taken—Parliamentary precautions and precautions for the publishing of the Order in Council and, if necessary, its revocation—which I trust in the circumstances your Lordships will regard as proper and adequate.

VISCOUNT MAUGHAM

I rise only for the purpose of apologising to my noble friend Lord Mottistone for an interruption that he appears to have resented. My reason for interrupting him was simply this, that I felt quite sure that the noble Lord had misunderstood or misread something in the letter of my old friend Lord Justice Greer, as he was for many years, now Lord Fairfield, whom I know exceedingly well, and as to whom I felt perfectly certain he had not said the Amendment as it stands would, if carried, not in the least prevent the Government going on with these Regulations and putting them into force. It is for that reason that I interrupted, and if the noble Lord resents it, all I can say is that I am exceedingly sorry.

LORD MOTTISTONE

I hasten to clear that point up. The noble Viscount, Lord Maugham, has shown me too much charming courtesy on the Woolsack and at all times for me to expect any kind of apology from him. I am only too thankful for the kind words he has used. The particular Amendment I might move would be to say "shall be," which I think represents the views of Lord Fair-field, to whom Lord Maugham has referred in eulogy. The subsection would then read: "Such Regulations shall be expressly approved by Motion in both Houses of Parliament." That of course is a change in the Bill, but it is of a minor character. It allows the Government to proceed forthwith on what it is proposed to do, but it would mean that the proposals founded upon Regulations would have to be actually moved by the Government instead of their being passed if nobody raised any objection. I do not, however, mean to go so far as to carry this Amendment to a Division, because the Lord Chancellor has assured us of his great desire to safeguard everything. But I suggest, in deference to the opinion of my noble friend Lord Fairfield, as it is merely a question of method of procedure, that an Amendment should be adopted in the form I have now suggested. I will move it in that form if the Lord Chancellor likes.

THE LORD CHANCELLOR

If your Lordships will allow me to say a word about that I will do so. I thoroughly understand the motive in the suggestion that has been made, and I yield to nobody in the regard that I have for Lord Fairfield, who, unfortunately, is prevented from being present at this sitting of the House for reasons of health. But I would say, knowing him as well as I do, I am satisfied that I could prove to him in five minutes that his fears are groundless. But I am not able to do that. I am only able to address his agent and emissary. I am afraid the latest proposal is no better than the first. I should have thought, if you are to say that these Regulations shall be expressly approved by Motion in both Houses of Parliament, the effect would be that until they had been so approved they would not be what we call in another connection "perfect" Regulations. The whole point is that they must be made and made effective at once. May I suggest to my noble friend, if he would like to finish this matter in the pleasantest way—as he has been good enough to say he would not propose to carry his proposal to a Division, naturally I will consider everything he has said—I should be glad if he can see his way, having made his point, to withdraw the Amendment so that we might get the remaining stages of the Bill this afternoon.

LORD MOTTISTONE

I think the noble Lord, Lord Strabolgi, has something to say, but I will withdraw the Amendment if the noble Viscount wishes.

THE LORD CHAIRMAN

Does the noble Lord move any Amendment?

LORD MOTTISTONE

No, it is not worth while.

LORD STRABOLGI

On the Parliamentary point of which my noble friend the Lord Chancellor has far longer experience than I have—I nevertheless have some slight experience of it—with great respect I would say he has much exaggerated the effect of the Amendment of my noble friend Lord Mottistone on the question of delay. He will forgive me pointing this out to him. This Bill, originally was going to be passed through the other place in one day, and there was a Motion on the Paper under which it was to be passed through your Lordships' House if we had agreed to it, also in one day. The whole thing was to be passed through like that, yet it has taken a fortnight to do it in spite of all the same arguments about urgency and imminent invasion of the country and all the rest of it. Now these Regulations— twenty in number, the Lord Chancellor informed us—must be mostly in common form, if I may use that expression. Only one or two are likely to be controversial, and I doubt, in view of all that has passed, whether there would be much discussion. The whole thing could be done in one Parliamentary day, and as now we sit only three days a week we could sit one extra day to deal with it.

On the question of liberty of the subject, I make no apology for stressing this matter. The Lord Chancellor tells us that he and all the other members of the Government are most jealous for the liberty of the subject. It is just because of the little control there appears to be over the Executive that we have to take Parliamentary safeguards. I wonder if the Lord Chancellor is aware of the raids that are taking place on people's houses up and down the country—the houses of most respectable people. One of my honourable friends in another place who represents a rural constituency had raids by the police in his constituency on twenty-three respectable people whose houses were ransacked from top to bottom. In one case they read the love letters that had passed between two newly-married people before they were married. They went from attic to cellar searching every corner. Who were these people? Some were very well-known trade union organisers and members of the Labour Party, and I understand some were Communists. But leave out the Communists, about whom I know nothing; the others were very well-known people in the district, perfectly respectable and in all respects law-abiding. I am told that up and down the country there have been perhaps 100 or more of these searches.

The matter has been ventilated in another place. In some cases searches have been made of the houses of members of the Workers' Educational Association because they were members of that Association. This will interest my noble friend Lord Snell, who for years has been a great supporter of the Workers' Educational Association. He had better be careful what documents he has in his own dwelling place. They have searched the houses of members of the Workers' Educational Association and taken away their educational literature. They have removed a book by my noble friend Lord Addison on agriculture. These works have been taken away by the police. Obviously it is a blunder, and is not the sort of thing that is intended. Now that I have drawn the Lord Chancellor's attention to it I hope, through the usual channels, he will have this nonsense stopped. But it shows how careful you have to be in war-time when people get panic-stricken and do things in excess of zeal without proper thought, though they are probably doing their best according to their lights as to what they consider their duty.

As a result of the raids on one of these houses some case might be concocted which would then be brought before one of these Emergency Courts. That is the only reason I have for making these remarks. I have mentioned these things to show how very careful we have to be in war-time when these pleas are made of emergency and haste and quick action. We have to be all the more careful to see what is actually being done. My noble friend Lord Mottistone is not going to press his Amendment, but I have made this protest from the Parliamentary point of view. If I may, with very great respect to the Lord Chancellor, I will say that I am afraid he has exaggerated the amount of delay that the Amendment would cause.

THE LORD CHANCELLOR

May I say one more word? Whether there has been exaggeration is, of course, a matter of opinion. I do not wish to exaggerate. It is a matter of judgment and estimate. I find myself entirely in agreement with the noble Lord—and I am glad to have the opportunity of saying so—in the feeling that in times of crisis there is a risk that sometimes action may be taken at the expense of quite innocent people in a way which would not happen if we were living in smoother and easier times. No doubt that is true. It may be to some extent inevitable, and I do not yield to him or anybody in the desire to see that more careful watch shall be kept, and, so far as may be, any cause for complaint prevented; but I can assure him and my noble friend and the whole House that there is nothing whatever in the draft Defence Regulations connected with this Bill which does anything of the kind.

LORD MOTTISTONE

I thank the Lord Chancellor for his very clear statement, and in view of what he has said I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 1, as amended, agreed to.

Remaining clause agreed to.

Then, Standing Order No. XXXIX having been dispensed with, Amendment reported: Bill read 3ª, with the Amendment, and passed, and returned to the Commons.

House adjourned at twenty minutes before six o'clock.